How the Retirement of Anthony Kennedy will Affect Family Law

Justice Anthony Kennedy recently announced his retirement from the United States Supreme Court. Kennedy was often the swing vote, resolving some of the most important issues of our time. For example, Kennedy has traced a wavering course on abortion, approving some restrictions and rejecting others; in almost every case, his vote determined the result.

Kennedy’s role in the recognition of gay rights has been well chronicled. In 1996, he vote for the majority in Romer v. Evans, which struck down a sharply anti-gay initiative in Colorado. Though the Court had not long before rejected—and indeed ridiculed—a claim that states could not outlaw gay sex, Kennedy’s Romer opinion insisted that a “State cannot so deem a class of persons a stranger to its laws.”

Romer gave heart to a generation of activists and, in 2003, led to the landmark case of Lawrence v. Texas, in which Kennedy and a majority reversed earlier precedent and held that states could not outlaw private homosexual conduct. At the time, Kennedy’s colleague Antonin Scalia warned in a furious dissent that the decision would surely lead to the recognition of same-sex marriage; nine years later, in Obergefell v. Hodges, Kennedy read in hushed courtroom for a five-justice majority an opinion announcing that states must recognize and themselves perform marriages between same-sex couples. Many of those in attendance, veterans of a movement undreamed of only a generation before, wept openly as the justice affirmed his vision of “dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices.”

There is no doubt whatsoever that Kennedy will be replaced by a much more ideological justice, and that much of his legacy may therefore prove evanescent. The Court’s progress on LGBT rights will almost certainly come to an end.

Overall, the Court will almost certainly take its place among the snarling partisan institutions that joust for power amid the unruly landscape of a divided republic.1

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